ML063470490

LB Memorandum and Order (Denying Entergy Motion for Leave to File Motion for Reconsideration of NEC Contention 3)

ML063470490
Person / Time
Site:	Vermont Yankee
Issue date:	12/13/2006
From:	Elleman T, Karlin A, Richard Wardwell Atomic Safety and Licensing Board Panel
To:
Byrdsong A T
References
50-271-LR, ASLBP 06-849-03-LR, RAS 12671
Download: ML063470490 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 12671 DOCKETED 12/13/06 ATOMIC SAFETY AND LICENSING BOARD SERVED 12/13/06 Before Administrative Judges:

Alex S. Karlin, Chairman Dr. Richard E. Wardwell Dr. Thomas S. Elleman In the Matter of Docket No. 50-271-LR ENTERGY NUCLEAR VERMONT YANKEE, LLC, and ASLBP No. 06-849-03-LR ENTERGY NUCLEAR OPERATIONS, INC.

December 13, 2006 (Vermont Yankee Nuclear Power Station)

MEMORANDUM AND ORDER (Denying Entergy Motion for Leave to File Motion for Reconsideration of NEC Contention 3)

Before the Licensing Board is a motion by Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (collectively, Entergy) for reconsideration of the Boards ruling on the third contention submitted by the New England Coalition (NEC), a petitioner in this proceeding.1 For the reasons set forth below, this motion is denied.

I. BACKGROUND This proceeding concerns Entergys application to renew the operating license for the Vermont Yankee Nuclear Power Station in Windham County, Vermont.2 Entergy seeks to extend its license for an additional twenty years beyond the current expiration date of March 21, 2012. On March 27, 2006, the Commission published a notice of docketing of the Entergy renewal application and a notice of opportunity to request a hearing on the application. 71 Fed.

1 Entergys Motion for Reconsideration of the Boards Decision to Admit [NEC]s Contention 3 (Oct. 2, 2006) [Entergy Motion].

2 Vermont Yankee Nuclear Power Station License Renewal Application (Jan. 25, 2006),

ADAMS Accession No. ML060300085 [Application].

Reg. 15,220 (Mar. 27, 2006). On May 26, 2006, NEC filed a hearing request and petition to intervene, which included NEC Contention 3.3 As submitted, the contention read:

Entergys License Renewal Application Does Not Include an Adequate Plan to Monitor and Manage Aging of the Steam Dryer During the License Renewal Proceeding.

Id. at 17. On June 22, 2006, Entergy and the NRC Staff filed their respective answers to the NEC Petition,4 and on June 29, 2006, NEC filed its reply.5 On September 22, 2006, the Board ruled, inter alia, that NEC had standing to challenge Entergys license renewal application and had presented four contentions that met the admissibility criteria of 10 C.F.R. § 2.309(f)(1). Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-20, 64 NRC

__ (2006). NEC Contention 3 was one of the four contentions admitted.

On October 2, 2006, Entergy filed the motion for leave to file a motion for reconsideration that is now before the Board. Entergy argues that Contention 3 does not challenge Entergys specific program for managing the aging of the VY steam dryer and therefore raises no genuine dispute on a material issue of law or fact regarding the VY license renewal application. Entergy Motion at 1. In ruling to admit the contention, says Entergy, the Board was apparently unaware that the basic premise of the contention . . . was demonstrably incorrect and therefore there is no genuine dispute between the parties that warrants litigation of this contention. Id. at 3. Entergy then proceeds to take issue with the declaration provided 3

Petition for Leave to Intervene, Request for Hearing, and Contentions (May 26, 2006)

[NEC Petition].

4 Entergys Answer to [NECs] Petition for Leave to Intervene, Request for Hearing, and Contentions (June 22, 2006) [Entergy Answer to Petition]; NRC Staff Answer to Request for Hearing of [NEC] (June 22, 2006).

5

[NEC]s Reply to Entergy and NRC Staff Answers to Petition for Leave to Intervene, Request for Hearing, and Contentions (June 29, 2006) [NEC Reply].

by NEC at the time it filed its petition to intervene, arguing that the expert in question relied on the wrong documents in preparing his declaration and that Entergys actual plans for monitoring the steam dryer are not as NEC represents them to be. Id. at 3-4. Entergy then turns to a factual presentation regarding Entergys steam dryer program, a presentation that includes extensive citation to the current licensing basis of the plant and to guidance documents issued by General Electric for the reactor type in question. Id. at 4-9.

NEC opposes Entergys motion for reconsideration, arguing first that Entergy merely repeats an argument it made on Answer to Contention 3 that NEC makes factually incorrect assumptions about Entergys aging management plan.6 NECs second argument is that the steam dryer monitoring conditions imposed during the current licensing period are not sufficient to establish a mandatory steam dryer aging management plan that will remain in effect throughout the proposed period of extended operation. Id. at 1-2. NEC then turns to factual presentations alleging that Entergy has changed its position regarding the aging management program for the steam dryer and arguing that the guidance Entergy is using for the program is neither clear nor binding. Id. at 3-5.

The NRC Staff opposes Entergys motion for reconsideration on the ground that it fails to satisfy the regulatory requirements of 10 C.F.R. § 2.323(e).7 According to the Staff, [t]o be successful, a reconsideration motion cannot merely repeat prior arguments, but must provide a good reason for the adjudicator to change its mind. Id. at 3 (citing Louisiana Energy Serv.,

L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004). Nor is a motion for reconsideration the place to present new arguments or evidence, according to the Staff, unless 6

[NEC]s Opposition to Entergys Request for Leave to File Motion for Reconsideration of NECs Contention 3 (Oct. 12, 2006) at 1 [NEC Answer].

7 NRC Staff Response to Entergys Motion for Leave to File Motion, and Motion, for Reconsideration of Decision to Admit [NEC] Contention 3 (Oct. 13, 2006) at 1 [Staff Answer].

the moving party can show that the new materials availability could not reasonably have been anticipated and its consideration demonstrates compelling circumstances, such as clear and material error that renders the decision invalid. Id. (citing Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 and 3), LBP-04-22, 60 NRC 379, 380-81, affd, CLI-04-36, 60 NRC 631, 641, 645 (2004). Entergy has failed to identify any new information or to show why a manifest injustice will result if reconsideration is not granted, the Staff argues, and has therefore failed to meet the threshold requirements for reconsideration of the Boards decision. Id. at 5.

II. ANALYSIS The legal standard governing motions for reconsideration can be found in 10 C.F.R. § 2.323(e), which states that such motions may be filed upon leave of the presiding officer upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.

As the NRC Staff correctly notes, this is a new standard put in place as part of the 2004 amendments to 10 C.F.R. Part 2 and designed to permit reconsideration only where manifest injustice would occur in the absence of reconsideration.8 Motions for reconsideration will be entertained only if a party brings decisive new information to the attention of the decision-maker or demonstrates a fundamental . . . misunderstanding of a key point. LES, CLI-04-03, 60 NRC at 622.

Entergys motion fails to satisfy this standard because it is merely an extension of arguments that have already been made and rejected. In its answer to NECs initial petition to intervene, Entergy presented several lengthy quotations from documents in the Vermont Yankee extended power uprate (EPU) proceeding as support for the argument that NECs 8

Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004). See also Staff Answer at 2-3.

expert witness declaration included a misinterpretation of Entergys steam dryer aging management program and therefore failed to provide a basis for Contention 3.9 At the time, Entergy argued that NEC had not provided any basis to dispute the conclusions of these documents that steam dryer integrity would be maintained during operation at EPU conditions in the current licensing period. Id. at 29.

In our September 22, 2006, ruling on contention admissibility, the Board did not attempt to evaluate either the accuracy of NECs expert witness declaration or the factual validity of Entergys challenge to it. Rather, we noted that NEC is not required to prove its contention at this time and ruled only that NEC has identified sufficient ambiguity in Entergys aging management plan for the steam dryer to meet the requirements for contention admissibility contained in 10 C.F.R. § 2.309(f)(1). Vermont Yankee, LBP-06-20, 64 NRC at __ (slip op. at 68-69). We also rejected the argument that resolution of steam dryer issues in the EPU time period shows that the issues have been resolved for any period of extended operation after 2012. Id. (slip op. at 66-67).

The motion currently before the Board fails to address the regulatory requirements contained in 10 C.F.R. § 2.323(e)10 and instead continues to argue that NECs expert is factually incorrect in his representation of Entergys commitments during the license renewal period. Entergy Motion at 4-8. Entergy has given us no sound reason to revisit our determination that NEC Contention 3 is admissible, and we decline Entergys invitation to 9

Entergy Answer to Petition at 27-29 (citing Letter from G. Wallis, ACRS, to N. Diaz, Chairman, NRC (Jan. 4, 2006), ADAMS Accession No. ML060040431; Supplement 33 of EPU Application, ADAMS Accession No. ML052650122; Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No. 229 to Facility Operating License No. DPR-28 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc., Vermont Yankee Nuclear Power Station Docket No. 50-271 (Mar. 2006), ADAMS Accession No. ML0600500280).

10 Entergy has ignored, to its detriment, this Boards earlier request that parties cite and address regulatory requirements in their pleadings before us. See id. (slip op. at 60 n.62).

litigate the merits of this contention now.

Entergy has provided us with no evidence that there is a clear and material error in the Boards decision to admit Contention 3 that renders the decision invalid. 10 C.F.R. § 2.323(e).

Nor has Entergy shown that a manifest injustice would occur in the absence of reconsideration, 69 Fed. Reg. at 2207, of our decision to admit NEC Contention 3. Finally, Entergy has not presented us with any new material that brings decisive new information to the proceeding or demonstrates a fundamental . . . misunderstanding of a key point. LES, CLI-04-03, 60 NRC at 622. Rather, Entergy has repeated old arguments and, possibly, confused matters still further by introducing arguments that contradict those it relied on in the past.11 In denying Entergys motion for reconsideration, the Board takes no position on the merits either of NEC Contention 3 or of Entergys aging management plan for the steam dryer -

whatever that is ultimately revealed to be. Nor do we necessarily endorse that Staffs suggestion that this contention involves no genuine issue as to any material fact and is thus appropriate for resolution by means of a motion for summary disposition.12 Staff Answer at 5.

We conclude only that Entergys motion has not satisfied the requirements of 10 C. F. R. § 2.323(e).

11 For example, Entergy may have altered its position on the role of computer codes in its steam dryer aging management program between its first pleading and the current motion.

Originally, Entergy argued that computer codes would be used in addition to monitoring and inspection techniques. Entergy Answer to Petition at 28. Now, however, Entergy appears to be arguing that the program does not depend on computer models at all. Entergy Motion at 4-5.

This is a contradiction if the latter statement means that the program does not use the computer models in any way.

12 The prerequisite for the granting a motion for summary disposition is a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. 10 C.F.R. § 2.710(d)(2), incorporated by reference into Subpart L procedures at 10 C.F.R. § 2.1205(c) (emphasis added). Motions for summary disposition are not the appropriate vehicles for battles of experts or resolution of ambiguous factual situations.

III. CONCLUSION For the reasons set forth above, Entergys motion for leave to file a motion for reconsideration is denied.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD13

/RA/

Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE

/RA/

Richard E. Wardwell ADMINISTRATIVE JUDGE

/RA/

Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland December 13, 2006 13 Copies of this order were sent this date by Internet e-mail transmission to counsel or a representative for (1) applicant Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.; (2) petitioners the Department of Public Service of the State of Vermont and the New England Coalition; and (3) the NRC Staff.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC, )

)

and )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING ENTERGY MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF NEC CONTENTION 3) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard E. Wardwell Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Mitzi A. Young, Esq. Ronald A. Shems, Esq.

Steven C. Hamrick, Esq. Karen Tyler, Esq.

David E. Roth, Esq. Shems Dunkiel Kassel & Saunders, PLLC Office of the General Counsel 91 College Street Mail Stop - O-15 D21 Burlington, VT 05401 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-271-LR LB MEMORANDUM AND ORDER (DENYING ENTERGY MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF NEC CONTENTION 3)

Sarah Hofmann, Esq. Anthony Z. Roisman, Esq.

Director for Public Advocacy National Legal Scholars Law Firm Department of Public Service 84 East Thetford Rd.

112 State Street - Drawer 20 Lyme, NH 03768 Montpelier, VT 05620-2601 Matthew Brock, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon, Curran, Spielberg, Office of the Massachusetts Attorney General & Eisenberg, L.L.P.

Environmental Protection Division 1726 M Street, NW, Suite 600 One Ashburton Place, Room 1813 Washington, DC 20036 Boston, MA 02108-1598 Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Town of Marlboro P.O. Box 30 SelectBoard Marlboro, VT 05344 P.O. Box 518 Marlboro, VT 05344 David R. Lewis, Esq. Jennifer J. Patterson, Esq.

Matias F. Travieso-Diaz, Esq. Office of the New Hampshire Pillsbury Winthrop Shaw Pittman LLP Attorney General 2300 N Street, NW 33 Capitol Street Washington, DC 20037-1128 Concord, NH 03301

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13th day of December 2006